Jenkins agt. City of Hudson. what a party can readily know, he is presumed to know, it can also be said that they knew when they commenced the trial of the action that the oath required by the Code—well and truly to try that issue-had not been administered, and, therefore, when they proceeded with the trial without demanding its administration, they deliberately and with knowledge waived the doing of the very thing, on account of not doing which they now move. The principle is fundamental that when a court has jurisdiction of the subject-matter and the parties, statute and constitutional rights may be waived, and the failure to object is a waiver (People agt. Globe Mutual Life Insurance Company, 82; see page 91 and authorities there cited; see, also, pages 95, 96, 97). There is no reason why that principle is not decisive of this case. It has been applied again and again, as has been shown, in instances very similar to the present, and it would be a grievous wrong, when no injury has been done, to nuilify the long and expensive trial which has been had. If then there was no curative statute this motion should be denied. The Code, however, declares (sec. 721): “In a court of record, when a verdict, report or decision has been rendered, the judgment shall not be stayed, nor shall any judgment of a court of record be impaired or affected, by reason of either of the following imperfections, omissions, defects, matters or things, in the proofs, pleadings or other proceedings. 12. For an omission on the part of a referee to be sworn, or for any other default or negligence of the clerk, or any other officer of the court, or of a party, his attorney or counsel, by which the adverse party has not been prejudiced." * * * It will be observed that the omission to swear a referee is expressly declared not to be fatal to the report. This provision was inserted in 1879 for the purpose, as is declared in the codifier's notes, of quieting "doubts in cases where the direction of section 1016 (post), had not been followed." Section 1016 is the one which requires the referee to be sworn, Jenkins agt. City of Hudson. and which provides that the waiver of the oath "may be made by written stipulation or orally. If it is oral, it must be entered in the referee's minutes." Its insertion in that section, and in the subdivision which has been quoted, shows the intent of the section. The neglect to swear the jury was the "default or negligence of the clerk," and as that was inapplicable to the case of a referee the addition referred to was made. As then the neglect to swear a referee does not per se vitiate a report or judgment; and as the necessity of an oath to a referee is as great as that to a jury; and as the omission to swear was the "default or negligence of the clerk," it must be held that the want of the oath to the jury in this case does not, unless the party swearing has been prejudiced, vitiate the verdict. The oath of a juror cannot be received to impeach a verdict, nor are the declarations of a juror after it has been rendered any evidence. The affidavit of the juror; and those stating conversations with another juror are not received as evidence upon this motion. Excluding these to which reference has been made, as the law clearly requires they should be, there is an entire absence of proof to show that the defendant has been injured. The affidavits on the other hand submitted by the plaintiff as well as the proceedings of the trial, of which the judge writing this opinion has personal knowledge, satisfy him that the defendant has received no injury by the omission to swear the jury, and that therefore section 721 of the Code, as well as well-established practice, requires the denial of this motion. VOL. II 32 Matter of Henry. SURROGATE'S COURT. In the Matter of a Motion to Remove a Special Guardian in the Estate of JAMES GRIFFITHS HENRY, deceased. Special guardian Who should not be appointed surrogate's court. Rule 10 of the In a controversy over probate a special guardian of an infant interested in the estate should not be appointed upon the nomination of the proponent; nor should any person be appointed such guardian who is associated in business with the proponent's attorney or counsel. Rule 10 of the surrogate's court must be strictly enforced, unless perhaps when it is clearly apparent that the interests of the infant will be best subserved by the establishment of the disputed paper as a will. In case a special guardian has been inadvertently appointed in disregard of Rule 10 he should be superseded. New York county, July, 1885. ROLLINS, S.- The paper purporting to be the last will and testament of James Griffiths Henry was admitted to probate as such on October 25, 1883, having been theretofore propounded by Sarah M. Henry, whom it named as its executrix. On October 17, 1884, Evan J. Henry filed in this court a petition for revocation of such probate, declaring himself therein to be the father of decedent and his only next of kin, and protesting that the proponent, who claims to be decedent's widow, had never been his lawful wife. On the 24th of April, 1885, the proponent filed a petition alleging that her husband left him surviving an infant son, whereof she was the mother, and that by the will here in dispute such son was named as a beneficiary. The petition concluded with a prayer for the appointment of Charles G. Cronin, esq., as special guardian to protect the rights of such infant in the proceeding for revocation. An order appointing Mr. Cronin such special guardian was thereupon entered. It was entered improvidently, involving, as it did, a violation of Rule 10 of the surrogate's court, by which rule it is, among Matter of Henry. other things, provided that in a proceeding for probate a special guardian will not be appointed on the nomination of a proponent to represent the interests of an infant. The order is also obnoxious to Rule 10 in another particular. In an affidavit filed by Mr. Cronin in opposition to this motion he admits the truth of the statement in the moving papers that he is connected in business with Mr. Woodbury, "who may," he says, "and probably will, act as counsel for the propo nent" in the proceeding for revocation. Mr. Cronin insists, however, that in that proceeding the interests of the child and those of the mother are identical. If this were the case, and if no contingency could arise in which their respective interests would clash, I might decline to vacate this appointment in spite of its irregularity. But, in case the validity of proponent's marriage and the legitimacy of her child shall be established upon the trial of the preliminary issue involving those questions, I am convinced that the infant should be represented, not by a guardian selected by the proponent employed in the office of her counsel and in natural sympathy, therefore, with her wishes, but by one who can determine without prejudice what attitude the best interests of the infant will require him then to take in the proceeding for revocation (See Matter of Tunis Cooper's Estate, N. Y. Daily Register, April 24, 1885; 4 Surr. Dec.,). The order of April twenty-fourth must, therefore, be vacated. I think it proper to add that this decision involves no reflection upon the personal character or attainments of the present guardian, to whom the surrogate of his own motion has repeatedly intrusted the protection of the interests of infant parties to proceedings in this court. Wells agt. Lachenmeyer. SUPREME COURT. CHARLOTTE F. WELLS agt. AUGUST LACHENMEYER. Husband and wife - Liability of husband for the wife's debts for jury. In a suit to recover for moneys advanced to the wife of defendant, where evidence was given tending to show that some portion of such advances was made for the purpose of procuring necessaries of food and clothing, it was a question of fact for the jury to determine whether or not such advances were made because of the wife's necessities, and under such circumstances that the same should be chargeable to the husband. First Department, General Term, August, 1885. Before DAVIS, P. J., DANIELS and BRADY, JJ. APPEAL from judgment on dismissal of complaint. J. C. J. Langbein, for respondent. PER CURIAM. There was sufficient evidence tending to establish the alleged marriage to require that question to be sent to the jury. In respect to the advances made by the plaintiff to the wife of the defendant, assuming her to have been his wife, there was evidence tending to show that some portion of such advances was made for the purpose of procur ing necessaries of food and clothing. It is a question of fact for the jury to determine whether or not such advances were made because of the wife's necessities, and under such circumstances that the same should be chargeable to the husband. It was not necessary to show that the plaintiff herself made the purchases. If she handed money to the wife for that purpose, that fact is equivalent, we think, to the act of furnishing the necessaries. The jury might well have found on the evidence that some portion at least of the money so advanced was directly applied to the |